Benge v. Ryan

United States District Court, D. Arizona

February 14, 2017

Robert Joseph Benge, Plaintiff,v.Charles L. Ryan, et al., Defendants.

ORDER

David
G. Campbell, United States District Judge

Plaintiff
Robert Joseph Benge brought this action pursuant to 42 U.S.C.
§ 1983 against prison healthcare providers, including
Defendants Merchant and Santo. On November 22, 2016, Merchant
and Santo filed a Joint Motion to Enforce Settlement
Agreement. (Doc. 204.) Plaintiff did not respond to the
motion within the 14 days permitted by Local Rule of Civil
Procedure 7.2(c), but, in light of Plaintiff's pro se
status, the Court issued an order granting Plaintiff an
additional 20 days to respond to the motion. (Doc. 205.) The
Court instructed Plaintiff to specifically address the
operative terms of the two written settlement agreements
attached to Defendants' motion and warned Plaintiff that
failure to respond could be construed as consent to the
granting of the motion. (Id. at 1-2.) Plaintiff did
not respond. The Court will grant the motion.

I.
Background

Plaintiff's
claims arose during his confinement at the Arizona State
Prison Complex-Lewis, where he injured his left leg in May
2012, but did not learn until December 2012 that he had
fractured his tibia. (Doc. 1.) Plaintiff alleged that Dr.
Merchant and Nurse Santo, among others, did not appropriately
treat his leg and, as a result, he suffered permanent injury
and continuing pain. In an order dated January 5, 2016, the
Court granted summary judgment to all Defendants except
Merchant, Santo, and Tucker.[1] (Doc. 150.)

Merchant
and Santo state that on October 24, 2016 the parties,
represented by their attorneys, participated in a settlement
conference with Magistrate Judge Burns, but concluded the
formal session after several hours without agreement. (Doc.
204, Ex. A, Stuart Decl. ¶¶ 3-4; Ex. B, Morrissey
Decl. ¶¶ 3-4.) After the formal session, the
parties continued discussions in the courthouse hallway and
exchanged multiple offers. Plaintiff's attorney, Paul
Gattone, discussed each offer with Plaintiff and Plaintiff
eventually accepted settlement offers from both Merchant and
Santo. (Doc. 204, Ex. A, Stuart Decl. ¶¶ 7-13; Ex.
B, Morrissey Decl. ¶¶ 5-11.) Afterwards, Plaintiff
joined the group and acknowledged the settlements verbally
and by handshakes with Nathan Stuart, counsel for Merchant,
and Arizona Assistant Attorney General Kelley Morrissey,
counsel for Santo. (Doc. 204, Ex. A, Stuart Decl.
¶¶ 14; Ex. B, Morrissey Decl. ¶¶ 12-13.)
Outside the courthouse, Stuart met with Plaintiff and Gattone
and “again confirmed that the agreement was for a
complete release of any and all claims.” (Doc. 204, Ex.
A, Stuart Decl. ¶ 15.) Stuart again shook hands with
Plaintiff and Gattone before they left. (Id.)

On
October 26, 2016, Stuart, on behalf of Merchant, emailed the
settlement agreement to Gattone, and the attorneys agreed to
advise Judge Burns that Merchant and Plaintiff had reached a
settlement. They arranged for a conference call with Judge
Burns on November 1, 2016. (Doc. 204, Ex. A, Stuart Decl.
¶¶ 18-22; Doc. 204-1 at 18-24 (Settlement Agreement
between Plaintiff and Merchant).)[2] The settlement between
Merchant and Plaintiff included a payment of $8, 500.00 to
Plaintiff as consideration for his release of all existing
and potential claims against Merchant arising between July 1,
2012 and March 3, 2013. (Doc. 204-1 at 18-20.)

Also on
October 26, 2016, Santo's attorney, Morrissey, sent to
Gattone a Settlement Agreement, a Stipulation for Dismissal
with Prejudice, and a proposed Order for Dismissal. (Doc.
204, Ex. B, Morrissey Decl. ¶ 17; Doc. 204-2 at 10-19
(Settlement Agreement between Plaintiff and Santo,
Stipulation, and proposed Order.) The settlement between
Santo and Plaintiff included a total payment of $7, 500.00 to
Plaintiff in exchange for releasing and discharging Santo and
the State of Arizona from the claims asserted against them in
the litigation. (Doc. 204-2 at 11-12.)

On
November 1, 2016, shortly before the call with Judge Burns,
Gattone told Stuart and Morrissey that Plaintiff wanted to
withdraw from the settlement. (Doc. 204, Ex. A, Stuart Decl.
¶ 24; Ex. B, Morrissey Decl. ¶ 18.) Upon learning
that Plaintiff wanted to withdraw, Judge Burns had Plaintiff
join the call. (Doc. 204, Ex. A, Stuart Decl. ¶ 26; Ex.
B, Morrissey Decl. ¶ 20.) Stuart asserts that when
Plaintiff joined the call, he “advised that he did not
want to honor the settlement agreements because he had spoken
with some ‘Scottsdale attorneys, ' who advised that
he had accepted an insufficient amount for his claims.”
(Doc. 204, Ex. A, Stuart Decl. ¶ 26; see also
Ex. B, Morrissey Decl. ¶ 20.) Plaintiff claimed that
settlement agreements were not reached on October 24, 2016
because (1) he had not signed anything and (2) “despite
the fact that he was consulted with prior to providing
acceptance, . . . his acceptance was not valid because he was
not physically present for the negotiations held between
attorneys; he was down the hallway and could not hear the
conversation.” (Doc. 204, Ex. A, Stuart Decl. ¶
26; see also Ex. B, Morrissey Decl. ¶ 20.)

On
November 2, 2016 Gattone filed a Motion to Withdraw as
Attorney of Record for Plaintiff. (Doc. 199.) Gattone
asserted that Plaintiff “entered into a settlement
agreement with all three Defendants after a many hour
settlement conference on October 24, 2016, ” but
Plaintiff “has decided to withdraw from these
agreements with Defendants Santo[] and Merchant and to force
this matter to trial.” (Id. at 1.) Gattone
said “Plaintiff's actions were taken despite
[Gattone's] advice to the contrary and [Gattone] feels
that to continue on in this matter would violate his
professional and person[a]l ethical standards.”
(Id. at 2.) Plaintiff did not respond to
Gattone's motion. By order dated November 14, 2016, the
Court permitted Gattone to withdraw, stating that
“Plaintiff shall be appearing pro se in this
matter.” (Doc. 202.)[3]

Defendants
have met their burden of showing that the parties formed
legally enforceable settlement agreements. Merchant agreed to
pay Plaintiff $8, 500.00 and Plaintiff agreed to release all
existing and potential claims against Merchant arising
between July 1, 2012 and March 3, 2013. (Doc. 204-1 at
18-20.) The agreement further provides that each party is to
bear its own attorneys' fees, that there is no admission
of liability or wrongdoing by either party, and that
Plaintiff's claim against Merchant is not related to or
arising from medical malpractice. (Id. at 22-23.) In
Santo's agreement, the State of Arizona, on behalf of
Santo, agreed to pay Plaintiff $7, 500.00, and Plaintiff
agreed to release the claims asserted against Santo and the
State. (Doc. 204-2 at 11.) The agreement further provides
that each party is to bear its own attorneys' fees,
costs, and expenses, that there is no admission of liability
by Santo, and that they will execute a Stipulation of
Dismissal with prejudice of this case. (Id. at
12-13.)

Defendants
reached these agreements with Plaintiff's attorney, Mr.
Gattone, and there is no doubt that Gattone was authorized by
Plaintiff to engage in the settlement efforts. Plaintiff was
present and represented by Gattone throughout the settlement
conference with Judge Burns, Plaintiff knew that settlement
talks continued in the hallway after the conference ended,
and Plaintiff confirmed the settlements reached by Gattone
and shook hands with defense counsel after the agreements
were reached. ...

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